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Exhibit 10.3
COMMERCIAL PAPER PLACEMENT AGENCY AGREEMENT, dated as of August 10,
1999, between RPM, INC., an Ohio corporation (the "Issuer"), and CHASE
SECURITIES INC., a Delaware corporation (the "Placement Agent").
The Issuer intends to issue short-term notes pursuant to Section 4(2)
of the Securities Act of 1933, as amended (the "1933 Act"), and Rule 506
thereunder.
The Issuer desires to enter into this Agreement with the Placement
Agent in order to provide for the offer and sale of such notes in the manner
described herein.
The parties hereto, in consideration of the premises and mutual
covenants herein contained, agree as follows:
1. Definitions.
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"BUSINESS DAY" shall mean any day other than a Saturday or Sunday or a
day when banks are authorized or required by law to close in New York City or
Chicago.
"COMPANY INFORMATION" shall mean the Private Placement Memorandum
(defined below), together with, to the extent applicable, information provided
by the Issuer pursuant to Section 7(b) hereof.
"DTC" shall mean the Depository Trust Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"INSTITUTIONAL ACCREDITED INVESTOR" shall mean an institutional
investor that is reasonably believed to qualify as an "accredited investor" as
defined in Rule 501(a) under the 1933 Act.
"ISSUING AND PAYING AGENT" shall mean The Chase Manhattan Bank, the
issuing and paying agent under the Issuing and Paying Agency Agreement, or any
successor thereto.
"ISSUING AND PAYING AGENCY AGREEMENT" shall mean the issuing and paying
agency agreement, dated as of August ____, 1999, between the Issuer and the
Issuing and Paying Agent, as the same may from time to time be amended.
"NOTES" shall mean short-term promissory notes of the Issuer,
substantially in the form of Annex A to the Issuing and Paying Agency Agreement
in the case of certificated Notes, and represented by master notes substantially
in the form of Annex B to the Issuing and Paying Agency Agreement in the case of
book-entry Notes, issued by the Issuer from time to time pursuant to the Issuing
and Paying Agency Agreement.
"OFFERING MATERIALS" shall mean the offering materials concerning the
Issuer contemplated by Section 7 hereof, and such offering materials as from
time to time revised or supplemented.
"PLACEMENT AGENT INFORMATION": shall mean the information concerning
the Placement Agent provided by the Placement Agent in writing expressly for
inclusion in the Private
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Placement Memorandum, as set forth under the headings "Chase Securities Inc. and
Affiliates" and "Additional Information" therein.
"PRIVATE PLACEMENT MEMORANDUM" shall mean the private placement
memorandum with respect to the offer and sale of the Notes (including materials
referred to therein or incorporated by reference therein), prepared in
accordance with Section 7 hereof and provided to purchasers or prospective
purchasers of the Notes, and all amendments and supplements thereto which may be
prepared from time to time in accordance with this Agreement.
"PERSON" shall mean an individual, a corporation, a partnership, a
trust, an association or any other entity.
"QUALIFIED INSTITUTIONAL BUYER" hall have the meaning assigned to that
term in Rule 144A under the 1933 Act.
"RULE 144A" shall mean Rule 144A under the 1933 Act.
"SEC" shall mean the U.S. Securities and Exchange Commission, or any
successor thereto.
2. Issuance and Placement of Commerical Paper Notes.
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(a) The Issuer hereby appoints the Placement Agent to act as the
Issuer's placement agent in connection with the sale of the Notes in accordance
with the terms hereof, and the Placement Agent hereby accepts such appointment.
While (i) the Issuer has and shall have no obligation to permit the Placement
Agent to purchase any Notes for its own account or to arrange for the sale of
the Notes and (ii) the Placement Agent has and shall have no obligation to
purchase any Notes for the Placement Agent's own account or to arrange for the
sale of Notes, the parties agree that, as to any and all Notes which the
Placement Agent may purchase or the sale of which the Placement Agent may
arrange, such Notes will be purchased or sold by the Placement Agent in reliance
on, among other things, the agreements, representations, warranties and
covenants of the Issuer contained herein and on the terms and conditions and in
the manner provided for herein. Without limiting the generality of the
foregoing, the Issuer agrees that the Issuer will not engage any person or party
to assist in the placement of the Notes other than a placement agent that has
executed a placement agreement with the Issuer which agreement is substantially
in the form hereof and that, without the prior written consent of the Placement
Agent (which Consent shall not be unreasonably withheld), the Issuer shall not
permit to become effective any amendment, supplement, waiver or consent to or
under such placement agreement.
(b) If the Issuer and the Placement Agent shall agree on the terms of
the purchase of any Note by the Placement Agent or the sale of any Note arranged
by the Placement Agent (including, but not limited to, agreement with respect to
the date of issue, purchase price, principal amount maturity and interest rate
(in the case of interest-bearing Notes) or discount rate thereof (in the case of
Notes issued on a discount basis), and appropriate compensation for the
Placement Agent's services hereunder) pursuant to this Agreement, the Placement
Agent shall confirm the terms of each such agreement promptly to the Issuer in
the Placement Agent's customary form, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement, and payment for such Note shall be
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made in accordance with such Agreement. The authentication and delivery of such
Note by the Issuing and Paying Agent shall constitute the issuance of such Note
by the Issuer. The Issuer shall deliver Notes signed by the Issuer to the
Issuing and Paying Agent, and instructions shall be delivered to the Issuing and
Paying Agent to complete, authenticate and deliver such Notes in the manner
prescribed in the Issuing and Paying Agency Agreement. The Placement Agent shall
be entitled to compensation at such rates and paid in such manner as the Issuer
and the Placement Agent shall from time to time agree upon in connection with
the transactions contemplated hereby.
(c) The Notes may be issued either in physical bearer form or in
book-entry form. Notes in book-entry form shall be represented by master notes
registered in the name of a nominee of DTC and recorded in the book-entry system
maintained by DTC. References to "Notes" in this Agreement shall refer to both
physical and book-entry Notes unless the context otherwise requires. The Notes
may be issued either at a discount or as interest-bearing obligations with
interest payable at maturity in a stated amount.
(d) Each Note purchased by, or the sale of which is arranged through,
the Placement Agent hereunder shall (i) have a face amount of $100,000, or an
integral multiple of $1,000 in excess thereof, (ii) have a maturity which is a
Business Day not later than the 364th day next succeeding such Note's date of
issuance and (iii) not contain any provision for extension, renewal or automatic
"rollover."
3. Representations and Warranties of the Issuer.
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(a) The Issuer represents and warrants as follows:
(i) The Issuer is a duly organized and validly existing corporation
in good standing under the laws of the jurisdiction of its incorporation and has
the corporate power and authority to own its property, to carry on its business
as presently being conducted, to execute and deliver this Agreement, the Issuing
and Paying Agency Agreement and the Notes, and to perform and observe the
conditions hereof and thereof
(ii) Each of this Agreement and the Issuing and Paying Agency
Agreement has been duly authorized, executed and delivered by the Issuer and
constitutes a legal, valid and binding agreement of the Issuer. The issuance and
sale of Notes by the Issuer hereunder have been duly authorized by the Issuer
and, when delivered by the Issuing and Paying Agent as provided in the Issuing
and Paying Agency Agreement, each Note will be the valid and binding obligation
of the Issuer.
(iii) Assuming that the Notes are offered and sold in the manner
contemplated by Section 6 below, the offer and sale by the Issuer of such Notes
will constitute exempt transactions under Section 4(2) of the 1933 Act and Rule
506 thereunder, and, accordingly, registration of the Notes under the 1933 Act
will not be required. Qualification of an indenture with respect to the Notes
under the Trust Indenture Act of 1939, as amended, will not be required in
connection with the offer, issuance, sale or delivery of the Notes.
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(iv) The Issuer is neither an "investment company" nor a "company
controlled by an investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(v) No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority is required to authorize, or
is otherwise required in connection with, the execution, delivery or performance
of this Agreement, the Issuing and Paying Agency Agreement or the Notes, except
as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
(vi) Neither the execution and delivery by the Issuer of any of this
Agreement, the Issuing and Paying Agency Agreement and the Notes, nor the
fulfillment of or compliance with the terms and provisions hereof or thereof by
the Issuer, will (x) result in the creation or imposition of any material
mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Issuer or (y) violate any of the terms of the
Issuer's charter documents or by-laws, any credit agreement, indenture, or other
similar debt instrument, or any other material contract or instrument to which
the Issuer is a party or by which it or its property is bound, or any law or
regulation, or any order, writ, injunction or decree of any court or
governmental instrumentality, to which the Issuer is subject or by which it or
its property is bound, except violations or defaults which have been waived, or
which would not have, singly or in the aggregate, a material adverse effect on
the Issuer or its subsidiaries, taken as a whole, or which would not affect the
validity of the Notes.
(vii) There are no actions, suits, proceedings, claims or governmental
investigations pending or, to the knowledge of the Issuer, threatened against
the Issuer or any of its officers or directors or any persons who control the
Issuer (within the meaning of Section 15 of the 1933 Act or Section 20 of the
Exchange Act) or to which any property of the Issuer is subject which could
reasonably be expected to have in a material adverse change in the condition
(financial or otherwise) of the Issuer and its subsidiaries, taken as a whole,
or materially prevent or interfere with, or materially and adversely affect the
Issuer's execution, delivery of performance of, any of this Agreement, the
Issuing and Paying Agency Agreement and the Notes.
(viii) The initial Offering Materials do not, and any amendments or
supplements thereto and any subsequent Offering Materials and any amendments or
supplements thereto will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they are made, not misleading
(provided that no representation or warranty is made as to the Placement Agent
Information).
(b) Each issuance of Notes by the issuer shall be deemed a representation
and warranty by the Issuer to the Placement Agent, as of the date thereof, that
both before and after giving effect to such issuance, (i) the representations
and warranties of the Issuer set forth in Section 3(a) hereof remain true and
correct on and as of such date as if made on and as of such date (except to the
extent such representations and warranties, expressly relate solely to an
earlier date); (ii) the corporate resolutions and certificate of incumbency
referred to in Section 5 hereof remain accurate and in full force and effect;
(iii) since the date of the most recent Offering
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Materials, there has been no material adverse change in the financial condition
or operations of the Issuer which has not been disclosed to the Placement Agent;
and (iii) the Issuer is not in default of any of its obligations hereunder,
under the Issuing and Paying Agency Agreement or under any Note.
4. Covenants and Agreements of the Issuer.
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(a) Without the prior written consent of the Placement Agent (which shall
not be unreasonably withheld), the Issuer shall not permit to become effective
any amendment, supplement, waiver or consent to or under the Issuing and Paying
Agency Agreement. The Issuer shall give to the Placement Agent, at least 60
Business Days prior to the proposed effective date thereof, notice of any
proposed amendment, supplement, waiver or consent under the Issuing and Paying
Agency Agreement. The Issuer shall provide to the Placement Agent, promptly
after the same is executed, a copy of any amendment, supplement or written
waiver or consent covered by the notice requirements of this Section 4(a). The
Issuer further agrees to furnish prior written notice to the Placement Agent, as
soon as possible and in any event at least 60 days prior to the effective date
thereof, of any proposed resignation, termination or replacement of the Issuing
and Paying Agent.
(b) The Issuer shall, whenever there shall occur any change in the Issuer's
financial condition or any development or occurrence in relation to the Issuer
that would be material to the holders of Notes or potential holders of Notes,
promptly, and in any event prior to any subsequent issuance of Notes, notify the
Placement Agent of such change, development or occurrence.
(c) The Issuer covenants and agrees with the Placement Agent that the Issuer
will promptly furnish to the Placement Agent a copy of any notice, report or
other information, relating to the Notes delivered to or from rating agencies
then rating the Notes.
(d) The Issuer shall not use the proceeds of the sale of the Notes for the
purpose of purchasing or carrying securities within the meaning of Regulation T
of the Board of Governors of the Federal Reserve System, unless the Issuer gives
not less than 10 days' prior written notice to the Placement Agent of the
Issuer's intention to do so and prompt notice of the actual commencement of such
use of proceeds. In the event that, after receipt of such a notice, the
Placement Agent purchases Notes as principal and does not resell such Notes on
the day of such purchase, the Placement Agent shall sell such Notes only to
persons it reasonably believes to be Qualified Institutional Buyers or to
Qualified Institutional Buyers it reasonably believes are acting for other
Qualified Institutional Buyers, in each case pursuant to Rule 144A.
5. Conditions Precedent
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At or promptly after the execution of this Agreement, and as conditions
precedent to any obligations of the Placement Agent hereunder, there shall have
been furnished to the Placement Agent, in form and substance satisfactory to the
Placement Agent:
(i) an original or photocopy of the executed Issuing and Paying Agency
Agreement;
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(ii) a certified copy of resolutions duly adopted by the Board of
Directors of the Issuer authorizing and approving the
transactions contemplated hereby;
(iii) a certificate of incumbency showing the officers and other
representatives of the Issuer authorized to execute Notes and to
give instructions concerning the issuance of Notes;
(iv) an opinion of counsel to the Issuer addressed to the Placement
Agent in form and substance reasonably satisfactory to the
Placement Agent;
(v) a copy of each other opinion of counsel furnished to any Person
that may be delivered in connection with the issuance of the
Notes, including, but not limited to, any opinion delivered
under or relating to the Issuing and Paying Agency Agreement,
each of which shall be addressed to the Placement Agent;
(vi) true and correct copies of the letters assigning ratings and of
all other correspondence to the Issuer from the rating agencies
that have assigned a rating to the Notes;
(vii) a copy of the Offering Materials, including the Private
Placement Memorandum, approved in writing by the Issuer;
(viii) true and correct copies of any documents relating to the Notes
executed by the Issuer and DTC; and
(ix) in connection with issuance of Notes in book-entry form, a copy
of the master note(s) evidencing such Notes.
6. Offers, Sales and Resales of Notes.
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All offers and sales of the Notes by the Issuer shall be effected
pursuant to the exemption from the registration requirements of the 1933 Act
provided by Section 4(2) thereof, which exempts transactions by an issuer not
involving any public offering. Offers and sales of the Notes by the Issuer
through the Placement Agent acting as agent for the Issuer shall be made in
accordance with Rule 506 under the 1933 Act. Notes may be resold or otherwise
transferred by the holders thereof only if the Notes are registered under the
1933 Act or if any exemption (including, but not limited to, the exemption
afforded by Rule 144A) from the registration requirements of the 1933 Act is
available, PROVIDED, HOWEVER, that the Issuer shall have no obligation to
register the Notes under the 1933 Act and has no intention of doing so at any
time in the future.
The Placement Agent (only with respect to offers and sales made by it
as agent for the Issuer and reoffers and subsequent resales or other transfers
made by or through the Placement Agent) and the Issuer hereby establish and
agree to observe the following procedures in connection with offers, sales and
subsequent resales or other transfers of the Notes:
(a) The Issuer hereby confirms to the Placement Agent that within the
preceding six months neither the Issuer nor any person other than the Placement
Agent acting on behalf of the
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Issuer has offered or sold any Notes, or any substantially similar security of
the Issuer, except as described in Section 2(a), to, or solicited offers to buy
any such security from, any person other than the Placement Agent. The Issuer
also agrees that as long as the Notes are being offered for sale by the
Placement Agent as contemplated hereby and until at least six months after the
offer of Notes hereunder has been terminated, neither the Issuer nor any person
other than the Placement Agent (except as contemplated by Section 2(a) hereof)
will offer the Notes or any substantially similar security of the Issuer for
sale to, or solicit offers to buy any such security from, any person other than
the Placement Agent except with the prior written consent of the Placement Agent
(which consent shall not be unreasonably withheld), it being understood that
such agreement is made with a view to bringing the offer and sale of the Notes
within the exemption provided by Section 4(2) of the 1933 Act and Rule 506
thereunder and shall survive any termination of this Agreement.
(b) Offers and sales of the Notes shall be made only to the following
types of investors; (i) Institutional Accredited Investors (including, but not
limited to, a bank, as defined in Section 3(a)(2) of the 1933 Act, or a savings
and loan association or other institution, as defined in Section 3(a)(5)(A) of
the 1933 Act, whether acting in its individual or fiduciary capacity, provided
that if it is acting in a fiduciary capacity it has sole investment discretion
with respect to any account for which it is purchasing a Note), (ii) fiduciaries
or agents (other than U.S. banks or savings and loan associations of the type
described in clause (i) of this sentence) that will be purchasing Notes for one
or more accounts, each of which is an Institutional Accredited Investor, and
(iii) Qualified Institutional Buyers.
(c) Resales and other transfers of the Notes by the holders thereof
shall be made, only to the Issuer or to Institutional Accredited Investors or,
in the case of Notes resold or otherwise transferred pursuant to Rule 144A, to
Qualified Institutional Buyers or, if the Rule 144A resale is made through the
Placement Agent, to institutional investors that the Placement Agent reasonably
believes to qualify as Qualified Institutional Buyers. The Placement Agent shall
not be liable to any person or entity for any resales or other transfers made in
violation of the foregoing conditions that are not made by or through the
Placement Agent.
(d) The Notes shall be offered only by approaching prospective
purchasers on an individual basis. No general solicitation or general
advertising shall be used in connection with the offering of the Notes. Without
limiting the generality of the foregoing, without the prior written approval of
the Placement Agent, the Issuer shall not issue any press release, generate any
publicity, allow any "tombstone" or other advertisement to be published, or hold
any meeting with securities analysts to the extent that any of these actions
relates to the Notes.
(e) No sale of Notes to any one purchaser shall be for less than
$100,000 principal amount and no Note shall be issued in a smaller face amount.
If the purchaser is a non-bank fiduciary acting on behalf of others, each person
for whom such purchaser is acting must purchase at least $100,000 face amount of
Notes.
(f) Each Note shall contain the following legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE SECURITIES
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LAW. BY ITS ACCEPTANCE OF THIS NOTE, THE PURCHASER REPRESENTS THAT (A)
THE PURCHASER IS (1) AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED
INVESTOR WITHIN THE MEANING OF REGULATION D UNDER THE ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR"), INCLUDING, WITHOUT LIMITATION, A
BANK, AS DEFINED IN SECTION 3(a)(2) OF THE ACT, OR A SAVINGS AND LOAN
ASSOCIATION OR OTHER INSTITUTION, AS DEFINED IN SECTION 3(a)(5)(A) OF
THE ACT, WHETHER ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY,
PROVIDED THAT, IF IT IS ACTING IN A FIDUCIARY CAPACITY, IT HAS SOLE
INVESTMENT DISCRETION WITH RESPECT TO ANY ACCOUNT FOR WHICH IT IS
PURCHASING A NOTE, OR (2) A FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK
OR SAVINGS AND LOAN ASSOCIATION OF THE TYPE DESCRIBED IN CLAUSE (A)(1)
OF THIS SENTENCE) PURCHASING THIS NOTE FOR AN ACCOUNT WHICH IS AN
INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING AT LEAST $100,000
OF NOTES OF THE TYPE REPRESENTED HEREBY, OR (3) A QUALIFIED
INSTITUTIONAL BUYER ("QIB") WITHIN THE MEANING OF RULE 144A UNDER THE
ACT; (B) THIS NOTE IS BEING ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION HEREOF; (C) ANY
RESALE OF THIS NOTE WILL BE MADE ONLY (1) TO THE ISSUER, CHASE
SECURITIES INC. ("CSI"), OR ANOTHER PERSON DESIGNATED BY THE ISSUER AS
A PLACEMENT AGENT FOR THIS NOTE (CSI AND EACH SUCH PLACEMENT AGENT TO
BE REFERRED TO HEREINAFTER AS "PLACEMENT AGENT"), NONE OF WHICH SHALL
HAVE ANY OBLIGATION TO ACQUIRE THIS NOTE, (2) THROUGH A PLACEMENT AGENT
TO AN INSTITUTIONAL INVESTOR APPROVED AS AN ACCREDITED INVESTOR OR
REASONABLY BELIEVED TO BE A QIB BY A PLACEMENT AGENT IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE ACT, OR (3) TO A QIB IN A
TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A; AND (D) IN THE
CASE OF SALES PURSUANT TO RULE 144A, IT IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR THE ACCOUNT OF ANOTHER QIB AND THE PURCHASER UNDERSTANDS
THAT THIS NOTE WAS SOLD TO THE PURCHASER PURSUANT TO AN EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE ACT PURSUANT TO RULE 144A.
(g) The. Placement Agent shall furnish to each purchaser of newly
issued Notes a copy of the Private Placement Memorandum, and each amendment or
supplement thereto (other than any amendment or supplement that has been
completely superseded by a later amendment or supplement), and any additional
Offering Materials approved by the Issuer and requested by such purchaser.
(h) For so long as any of the Notes is outstanding and is a "restricted
security" within the meaning of Rule 144(a)(3) under the 1933 Act, (i) the
Issuer shall cause to be provided to any holder of Notes and any prospective
purchaser of the Notes designated by a holder of such Notes, upon the request of
such holder or prospective purchaser, the information, if any, required to be
provided to such holder or prospective purchaser by Rule 144A(d)(4) and (ii) the
Issuer shall update such information from time to time in order to prevent such
information from
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becoming false or misleading and the Issuer shall take such other actions as are
necessary to ensure that the safe harbor exemption from the registration
requirements of the 1933 Act under Rule 144A is and will be available for resale
of the Notes conducted in accordance with Rule 144A.
(i) In the event that any Note offered or to be offered by the
Placement Agent would be ineligible for resale under Rule 144A (because such
Note is of the same class (within the meaning of Rule 144A) as any other
securities of the Issuer which are at such time listed on a national securities
exchange registered under Section 6 of the Exchange Act, or quoted in a U.S.
automated inter-dealer quotation system), the Issuer shall immediately notify
the placement Agent (by telephone, confirmed in writing) of such fact and shall
promptly prepare and deliver to the Placement Agent an amendment or supplement
to the Offering Materials describing the Notes that are ineligible, the reason
for such ineligibility and any other relevant information relating thereto.
(j) The Issuer agrees promptly from time to time to take such action as
the Placement Agent may reasonably request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Placement Agent may
request and to comply with such laws so as to permit the continuance of sales
and resales therein for as long as may be necessary to complete the transactions
contemplated hereby, provided that in connection therewith the Issuer shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction other than consent to service of process
under such state securities laws. The Issuer also agrees to reimburse the
Placement Agent for any reasonable fees or costs incurred in so qualifying the
Notes.
7. Disclosure.
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(a) The Issuer understands that, in connection with the offer and sale
of the Notes, from time to time offering materials, including a Private
Placement Memorandum and any other Company Information approved by the Company
for dissemination to purchasers or potential purchasers of the Notes (the
"Offering Materials") will be prepared relating to the Issuer, which may be
distributed to the Placement Agent's sales personnel and to purchasers and
prospective purchasers of the Notes.
(b) To provide a basis for the preparation of the Offering Materials
and to assist in the Placement Agent's ongoing credit review procedures and sale
of the Notes, the Issuer agrees to furnish to the Placement Agent, as these
items become available, (i) the Issuer's most recent report on Form 10-K filed
with the SEC and each report on Form 10-Q or 8-K filed by the Issuer with the
SEC since the most recent Form 10-K, (ii) the Issuer's most recent annual
audited financial statements and each interim financial statement or report
prepared subsequent thereto, if not included in item (i) above, (iii) the
Issuer's and its affiliates' other publicly available recent reports, including,
but not limited to, any publicly available filings or reports provided to their
respective shareholders, any national securities exchange or any rating agency,
and any information generally supplied in writing to securities analysts, (iv)
research reports with respect to the Company prepared by any brokerage house or
rating agency, (vi) any other information or disclosure prepared pursuant to
Section 7(f) hereof, (vii) and any other information or document prepared or
approved by the Issuer for dissemination to purchasers or potential purchasers
of the
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Notes. In addition, the Issuer shall provide the Placement Agent with such other
information as the Placement Agent may reasonably request for the purpose of its
ongoing credit review of the Issuer.
(c) The Issuer recognizes that the accuracy and completeness of the
Offering Materials are dependent on the accuracy and completeness of the
information obtained by the Placement Agent and, subject to Section 7(d) and
Section 8 hereof, the Placement Agent shall not be responsible for any
inaccuracy in any Offering Materials.
(d) The Placement Agent agrees that prior to the distribution of any
Offering Materials the Placement Agent will provide the Issuer with a copy
thereof for the Issuer's approval. The Issuer agrees promptly to notify the
Placement Agent in writing of the Issuer's approval or disapproval of any
Offering Materials submitted to the Issuer for review. Any such approval by the
Issuer shall be deemed to be a representation by the Issuer that the Offering
Materials (excluding any Placement Agent Information) so approved does not
contain an untrue statement of a material fact nor omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading.
(e) The Issuer represents and warrants to the Placement Agent that the
financial statements of the Issuer delivered or to be delivered to the Placement
Agent in accordance with this Section 7 are or will be in accordance with
generally accepted accounting principles and practices in effect in the United
States on the date such statements were or will be prepared and fairly do or
will present the financial condition and operations of the Issuer at such date
and the results of the Issuer's operations for the period then ended.
(f) The Issuer further agrees to notify the Placement Agent promptly
upon the occurrence of (i) any event that would render any material fact
contained in the Issuer's most recent financial reports, as submitted to the
Placement Agent, untrue or misleading, or (ii) any event relating to or
affecting the Issuer that would cause the Offering Materials then in use to
include an untrue statement of material fact or to omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. In such event, the
Issuer agrees to supply the Placement Agent promptly with such information as
will correct such untrue or misleading statement or such omission.
8. Indemnification.
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(a) The Issuer agrees to indemnify the Placement Agent and its affiliates, their
respective directors, officers, employees, and agents, and each person who
controls the Placement Agent or its affiliates within the meaning of the 1933
Act or the Exchange Act and any successor thereto (the Placement Agent and each
such person being an "Indemnified Person") from and against any and all losses,
claims, damages and liabilities, joint or several (collectively, the "Damages"),
to which such Indemnified Person may become subject under any applicable federal
or state law, or otherwise, related to or arising out of (i) any untrue
statement or alleged untrue statement or a material fact contained in the
Offering Materials or in any information (whether oral or written) or documents
furnished or made available by the Issuer to offerees of the Notes or any of
their representatives or the omission or the alleged omission to state therein a
material fact necessary to make the statements therein not misleading in light
of
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the circumstances under which they were made (except to the extent such Damages
relate to or arise out of the Placement Agent Information), or (ii) any matter
or transaction contemplated by this Agreement or by the engagement of the
Placement Agent pursuant to, and the performance by the Placement Agent of the
services contemplated by, this Agreement and shall promptly reimburse any
Indemnified Person for all expenses (including, but not limited to, reasonable
fees and disbursements of external counsel), as they are incurred, in connection
with the investigation of, preparation for or defense of any pending or
threatened claims or any action or proceeding arising therefrom, whether or not
such Indemnified Person is a party, provided, however, that, with respect to
(ii) herein, the Issuer shall not be liable in any such case to the extent such
loss, claim, damage or liability is finally judicially determined to have
resulted primarily from an Indemnified Person's gross negligence, bad faith, or
willful misconduct.
(b) The Placement Agent agrees to indemnify the Issuer and its
affiliates, their respective directors, officers, employees, and agents, each
person who controls the Issuer or its affiliates within the meaning of the 1933
Act or the Exchange Act, and any successor thereto (the Issuer and each such
person being an "Issuer Indemnified Person") from and any all Damages to which
such Issuer Indemnified Person may become subject under any applicable federal
or state law, or otherwise, related to or arising out of the Placement Agent
information.
(c) Promptly after receipt by an Indemnified Person under this Section
8 of notice of any claim or the commencement of any action, the Indemnified
Person shall, if a claim in respect thereof is to be made against the Issuer
under this Section 8, notify the Issuer in writing of the claim or the
commencement of that action; PROVIDED, HOWEVER, that the failure to notify the
Issuer shall not relieve it from any liability that the Issuer may have under
this Section 8 except up to the extent of any factual and material prejudice
suffered by the Issuer as a result of such failure; and, PROVIDED, FURTHER, that
in no event shall the failure to notify the Issuer relieve it from any liability
that the Issuer may have to an Indemnified Person otherwise than under this
Section 8. If any such claim or action shall be brought against an Indemnified
Person, and such Indemnified Person notifies the Issuer thereof, the Issuer
shall be entitled to participate therein and, to the extent that the Issuer
wishes, to assume the defense thereof with counsel reasonably satisfactory to
the Indemnified Person. After notice from the Issuer to the Indemnified Person
of the Issuer's election to assume the defense of such claim or action, the
Issuer shall not be liable to the Indemnified Person under this Section 8 for
any legal or other expenses subsequently incurred by the Indemnified Person in
connection with the defense thereof other than reasonable costs of
investigation. The Issuer shall not be liable for any settlement of any such
action effected without the Issuer's written consent (which consent shall not be
unreasonably withheld) but, if settled with the Issuer's written consent or if
there is final judgment for the plaintiff in any such action, the Issuer agrees
to indemnify and hold harmless any Indemnified Person from and against any loss
or liability by reason of such settlement or judgment.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is for
any reason unavailable or insufficient to hold harmless an Indemnified Person,
other than as expressly provided above, the Issuer and the Placement Agent shall
contribute to the aggregate costs of satisfying such liability (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuer, on the one hand, and the Placement Agent, on the other hand, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only
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the relative benefits referred to in clause (i) above but also the relative
fault of the Issuer on the one hand and the Placement Agent on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Issuer on the
one hand and the Placement Agent on the other with respect to such offering
shall be deemed to be in the same proportion as the aggregate proceeds to the
Issuer of the Notes sold pursuant hereto (before deducting expenses) bear to the
aggregate commissions and fees earned by the Placement Agent hereunder. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Issuer on the one hand or the Placement Agent on the other, the intent of the
parties, and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Issuer and the
Placement Agent agree that it would not be just and equitable if contributions
pursuant to this Section 8 were to be determined by pro rata allocation or by
any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an Indemnified
Person as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8 shall be deemed to include, for
purposes of this Section 8, but not be limited to, any fees and disbursements of
external counsel reasonably incurred by an Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, the aggregate of all amounts paid by the Placement
Agent pursuant to the foregoing shall not exceed the aggregate of such
commissions and fees earned by the Placement Agent hereunder.
(d) The obligations of the Issuer in this Section 8 are in addition to
any other liability that the Issuer may otherwise have.
(e) The provisions of this Section 8 shall survive the termination of
this Agreement.
9. Choice of Forum.
----------------
For purposes of any suit, action or proceeding brought by the Issuer
against the Placement Agent in connection with or arising out of this Agreement,
any agreement, instrument or document entered into in connection with this
Agreement, or the offer and sale of the Notes the Issuer submits to the
non-exclusive jurisdiction of the Federal courts located in the Borough of
Manhattan and the courts of the State of New York located in the Borough of
Manhattan.
10. Notices.
--------
All notices required under the terms and provisions hereof shall be in
writing, delivered by hand, by mail (postage prepaid), or by telex, telecopier
or telegram, and any such notice shall be effective when received at the address
specified below.
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If to the Issuer: If to the Placement Agent:
- ---------------- -------------------------
RPM, Inc. Chase Securities Inc.
2628 Pearl Road 270 Park Avenue, 9th Floor
P.O. Box 777 New York, New York 10017
Medina, OH 44258 Attention: Money Market Division
Attention: David P. Reif III/ Fax No.: 212-834-6560
P. Kelly Tompkins
Fax No: 330-225-8743
With a copy to:
- ---------------
Edward W. Moore
Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland OH 44114-2688
Fax No.: 216-241-0816
or, if to any of the foregoing parties or their successors, at such other
address as such party or successor may designate from time to time by notice
duly given in accordance with the terms of this Section 10 to the other party
hereto.
11. Governing Law.
--------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS
PROVISIONS.
12. Entire Agreement.
-----------------
This Agreement constitutes the entire agreement between the parties
hereto with respect to the matters covered hereby and supersedes all prior
agreements and understandings between the parties.
13. Amendment and Termination; Successor; Counterparts.
---------------------------------------------------
(a) The terms of this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except by written instrument
signed by both parties hereto. The Issuer or the Placement Agent may terminate
this Agreement upon at least 30 days' written notice to the other, provided that
such termination shall not affect the obligations of the parties hereunder with
respect to Notes unpaid at the time of such termination or with respect to
actions or events occurring prior to such termination.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; PROVIDED,
HOWEVER, that the Issuer may not assign, either in whole or in part, any of its
rights or obligations under this Agreement without the prior written consent of
the Placement Agent (which consent shall not be unreasonably withheld), and any
such assignment without such consent shall be null and void. The Placement Agent
may assign and transfer, either in whole or in part, any of its rights or
obligations under
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this Agreement to any affiliate of the Placement Agent, upon at least 30 days'
prior written notice to the Issuer.
(c) This Agreement may be executed in several counterparts, each of
which shall be deemed an original hereof
14. Captions.
---------
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
15. Severability of Provisions.
---------------------------
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity of such provisions in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
RPM, INC.
By /s/ David P. Reif
-------------------------
Name: David P. Reif
Title: Vice President
CHASE SECURITIES INC.
By /s/ Marco Tenada
-------------------------
Name: Marco Tenada
Title: Vice President
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